Transforming Justice – An Interview with Law Professor Marjorie Silver

I read and was rather fascinated by Marjorie Silver’s new book, Transforming Justice, Lawyers, and the Practice of Law, an anthology of writing presenting an opportunity to introduce readers to ways to change the legal landscape to create more collaborative and less adversarial practices.

It says on the back cover, “This collection of writings by participants in the Project for Integrating Spirituality, Law, and Politics (PISLAP), along with others actively engaged in transforming law, legal education, and social justice, seeks to heal brokenness rather than merely resolve disputes and moves us toward ‘The Beloved Community’ envisioned by the Reverend Martin Luther King Jr. more than fifty years ago. It showcases the abundant ways in which lawyers, judges, law professors, and others are employing more communitarian, peaceful, and healing ways to resolve conflicts and achieve justice. It is written for those who share similar goals and are eager to learn new ways to practice law and create a legal system that fosters empathy, compassion, and constructive change.”

I was very much hoping to meet Marjorie in person to discuss her work, but unfortunately, our schedules didn’t permit it (at least not in the short term) so we had a recent phone conversation instead. As I expected, she’s smart, funny, and kind, and full of big ideas. Here’s what she had to say about her book and about the legal profession.

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The NewsWhistle Q&A with Marjorie A. Silver

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Date: July 18, 2017

Occupation: Professor of Law, Touro College Law Center

Hometown: Albertson, New York

Current town: New York, New York

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Good to talk to you today! Thank you for taking the time to discuss your book, which I really do appreciate. For people unfamiliar with your work, what’s your “elevator pitch”?

I’m working on ways to resolve conflicts and achieve justice that are not adversarial, but healing, communal, and relational, working towards connections, and not division.

Do we need to change our laws? Or as a profession (I’m a lawyer as well), do we need to change ourselves? Or perhaps some of both?

There are different ways to approach it. The laws could be changed. Peter Gabel and Rhonda Magee (who both have chapters in my book), use tort law as an example. Instead of the law which absolves bystanders of responsibility for doing nothing when they observe a stranger in harm’s way, why not have a law with a positive duty to assist someone in distress?

A “Good Samaritan” law.

Yes. But I think we need to get away from relying so heavily on the Law and open our hearts to our connections with others, even those with whom we are in conflict. That requires internal work and self-awareness. Contemplative practices allow us to look deeply into our own hearts and souls. It opens us up to understanding that we’re all connected.

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Lawyers have such a poor reputation, and have for such a long time. Charles Dickens: “If the lawsupposes that…the law is a ass.” Shakespeare: “The first thing we do, let’s kill all the lawyers.” (Although I don’t believe Shakespeare was truly a fan of the mob, it’s a popular quote!) And it’s true that a lot of aspects of our tort law, and law generally, make no sense in any human, religious, or cultural tradition. I understand that, and yet it also bothers me when there is some kind of notorious court case and the outcome is blamed on greedy lawyers or “ambulance chasers,” when in fact, it’s a whole system: lawyers are hired by, and represent clients, and go before judges, and juries, and the laws the courts apply are passed by elected officials, and they, and the voters, and our entire society, should rightly be implicated in any harm that the law does.

That’s true. One of the writers in my book, Peter Phillips, has studied other societies and how they handle conflicts, and how in many societies the solutions are congruent with the values of the community. We are taught as little kids to own up and take responsibility for our actions, to apologize when we have hurt someone. Yet in our adversarial system, lawyers advise their clients not to say anything, not to admit anything, not to apologize. And that takes its toll on lawyers, of course, as well as on litigants. It creates cognitive dissonance. We have a system that in many ways is a battle of wits. And it has less to do with truth-finding than it should.

Like the old joke that a jury is a group of people who vote on which side has the better lawyer. So, where do you think the ideas in your book can make the most impact? Teaching? Alternative dispute resolution? New legal ideas like the idea of ecocide, in the existing legal frameworks?

I don’t know which of these ideas would make the most impact—but saving the planet is critical to all the others. If there is no earth, then the rest are irrelevant.

I can speak to what things have caught on the most so far. First, problem-solving courts. This is a movement that has been growing around the world, specialized courts that provide treatment and services, rather than incarceration or other punishment. Through use of a multi-disciplinary approach, overseen by a judge, they focus on addressing the underlying problems that caused participants to become involved with the criminal justice system in the first place. By using systems of rewards and sanctions they enable participants to get the services they need and become functioning, law-abiding members of society. Examples include drug courts, mental health courts, veterans courts, to name just a few. They have been wonderfully successful in reducing recidivism, and exist in many countries around the world.

Another idea that has really caught on is the use of restorative practices to reform juvenile justice. Restorative justice practices make a huge difference, and schools, now in increasing numbers, are using these approaches as alternatives to harsh disciplinary sanctions such as suspension and expulsion. Increasing numbers of prosecutors and correctional facilities are using restorative practices as well.

There are various forms of restorative justice practices, but what they have in common is a process whereby those harmed and those who caused the harm can listen deeply and reach an understanding of the reasons for the civic or personal violation, with the goal of agreeing on an appropriate sanction or remedy.

Here’s a typical, hypothetical, example that uses a restorative justice circle: a young woman is arrested for shoplifting some cheap jewelry at a chain retail store. Rather than going to court, she and the shop owner agree to participate in a circle process. The participants include the shop owner, the police officer who arrested the girl, the girl herself, her mother, and anyone else in the community who might have an interest. The shop owner explains the economic impact of the theft, her expenses, having to make the rent, and the low profit margins in her business. The young woman explains that she had hardly any jewelry and envied her friends who did. Her mother is able to understand how important it was for her daughter to feel like she fit in with her friends. A plan emerges that provides for the young woman to make restitution, by working some hours after school and on weekends in the store. The shop owner offers her a part-time job in the store, enabling the young woman to earn sufficient money to purchase the kinds of items she was previously shoplifting. If this works, not only will she not have a criminal record, she will have learned a path to legally attain what she wants to acquire. What was broken in the social contract is repaired.

In our punitive justice system, the victim’s voice is rarely heard and when it is, not until the sentencing phase. It’s the state that brings the action against the defendant, and even when there is a conviction, the process rarely brings the victim peace and completion. Restorative justice practices honor the relationship between the breach and those affected and holds the promise of true closure.

Through its listserv, the Restorative Justice Initiative disseminates information attesting to the burgeoning of restorative justice in the New York area. It communicates information on trainings, employment opportunities, programs, and conferences—everything restorative justice-related. And it’s amazing how much is going on, especially within the school system. These practices have been successful in decreasing discipline problems.

I am glad to hear that. I think many mistakes have been made with “zero tolerance” policies in school. I know I have heard of some very absurd results of enforcing rules with no context and no room for interpretation or nuance. Things like a six-year-old kid being suspended from school for bringing in a weapon, when in fact, the kid was bringing in a birthday cake and the grandmother had packed a knife in the box to make it easier for the teacher to serve it. Outcomes like that make no sense.

We are moving away from that. Many dedicated educators are doing amazing work. And they know we need changes to the system, the system that perpetuates the legacy of slavery that this country was built on. The school-to-prison pipeline: young black folks getting thrown out of school, on to the streets, turning to crime, and ultimately ending up in adult facilities.

A friend of mine is on the board of a non-profit organization that runs an alternative sentencing program and they take kids who have gotten in trouble and meet their needs, if they need help with mental health, with school work, with family therapy, with whatever their problems are. And it works…it is both cheaper and has better outcomes than incarceration. I don’t know why we aren’t just throwing money at this kind of program because it makes so much sense and does so much good.

Well, our country was moving that way…I think until the recent election, both Democrats and Republicans agreed that we need to reform our criminal justice system. We are locking too many people up.

Let’s hope our country regains some sanity on this point, then.

The third broad area I wanted to mention is in the civil sphere, something called collaborative law. A Minnesota divorce lawyer, Stu Webb, invented it almost thirty years ago. He and Phoenix lawyer Pamela Donison have chapters about it in my book. It was originally designed for divorce cases, but its use is spreading into many other areas of conflict. In collaborative law there’s a written commitment signed by both parties and both of their attorneys that they will be open and honest in the process of creating an agreement, in the rearrangement of the marital relationship, that they will look after the well-being of the children and of the spouses, and will be open and honest in their financial disclosures. There’s often a financial specialist involved as well, and they take a team approach, with one or more mental health experts as needed, for the children and for the spouses, who are likely in emotional conflicts. The lawyers and the clients sign a contract and they agree that through this process, if they cannot reach an agreement the two lawyers will step down. They will not represent the spouses in court. Court is off the table—at least for these lawyers. The threat of litigation is removed. It’s a way to put the resolution of conflicts in the hands of the parties themselves, rather than letting judges or arbitrators decide what is best for this family. Collaborative law has really taken off in Florida and Texas, and has spread throughout other countries such as Canada and Australia. Not so much in New York yet, although its growing.

New York is sometimes a bit behind in family law reform. I read in your book that it was fortunate that this was founded in Minnesota…people take Minnesotans seriously! If this were an initiative from flaky California, people in other states might be inclined to think less of it!

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If you could wave your magic wand and change one thing about law, what would you do?

I would change our laws on equal protection and racial justice. They’re built on the fiction of color-blindness and our society is not. Slavery–our system affected people of color in horrendous ways, and having an African-American president hasn’t diminished that, as recent developments have shown. I would pass laws to recognize and respond to the implicit and structural bias in our country that subordinates people of color.

Would you be in favor of reparations, then?

I’d be open to the process. Reparations aren’t necessarily about money but about some form of truth and reconciliation.

Have you been following that story about Georgetown University and slavery?

Yes, and it’s a complicated issue. It’s an overture, but their offering of free tuition…not everyone who has been harmed is a direct descendant of those particular slaves.

I think it would be very hard to figure out how which people reparations would apply to, and to what extent they’ve been harmed. The law can be pretty clumsy. Which is not an excuse, of course, not to try, not to make an effort to address this enormous wrong.

Besides yours, do you have a book you recommend? For lawyers? Or for the general public?

Everyone should read The New Jim Crow by Michelle Alexander. It opened my eyes to how mass incarceration is a direct legacy of slavery.

For people who want to understand more about transforming law, I’d recommend J. Kim Wright’s new book, Lawyers as Changemakers: the Global Integrative Law Movement. Kim has insights from traveling around the world and meeting legal innovators of all kinds. It’s a worldwide movement! So many people are yearning for ways to interact with others with kindness and compassion.

Is there a work of fiction you’d recommend?

The Underground Railroad by Colson Whitehead. What struck me when I listened to it on tape was not only that it was helpful in understanding the lived reality of slavery, despite the story’s elements of magical realism—the underground railroad is portrayed an an actual, physical railroad. I was profoundly struck by a passage that critiqued our self-image as a country founded on principles of justice. An anti-slavery activist asks what could be less just than a country founded by foreign powers that invaded it, slaughtered its indigenous citizens, and imported another people as slaves?

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Do you have a movie you’d like to recommend?

I would strongly recommend the movie that won the Oscar this year for best picture, Moonlight. It has an amazing cast of black actors and demonstrates the richness in the talent pool of people of color. I haven’t seen it yet, but I can’t wait to see I Am Not Your Negro, about James Baldwin.

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How has the critical response been to your book? Do people seem to be appreciating your ideas?

Well, no one has said they didn’t like it! Actually, the response has been quite gratifying. I don’t often feel like a rock star, but I recently experienced such a moment. At my law school, the work I do is considered pretty much fringe. It’s the same way at most schools. But I was just at a conference in Prague where I spoke on Teaching Transformation and a young Canadian lawyer came up to me and said she was so excited to hear me speak—that my book had changed her life. It doesn’t get much better than that!

Wow! You don’t get to hear about changing people’s lives very often!

I know. That’s the point of this work, though. I won’t make a lot of money on this book, especially since I keep asking the publisher to give it away to press readers and selling it at a discount! But it’s really about spreading the word, getting the word out widely that the system we have is not inevitable.

Do you have another book in the works?

No, for now I want to work on short pieces—perhaps I’ll even learn the art of blogging! It was ten years between my two books, and this book took over six years from conception to completion.

So another book in ten more years?

I don’t think so…but I might change my mind!

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I was thinking about the quotation about how democracy is the worst system of government ever, except for all others that have been tried…who was that?

Winston Churchill, I think?

I think so…not sure if it is apocryphal. [It’s not…we looked it up!] But what are the dangers of changes in the law, and have you thought about the possibilities of negative unintended consequences?

Well, we know about the bad consequences of alternative dispute resolution. The risk of someone who has fewer resources, someone less well educated, being taken advantage of. The judge, in the courtroom setting, is there to equalize things. (But does that really happen?)

But you could perhaps say that Restorative Justice is the worst system of resolving disputes ever, except for all others…

I wouldn’t want to forgo litigation altogether. If we didn’t have litigation we wouldn’t have cases like Brown v. Board of Ed. I wouldn’t have wanted that case to have been settled informally, just between the immediate parties. It was essential to have the Supreme Court proclaim equal justice to be the law of the land.

So you’re not really truly radical or revolutionary?

No, I’m not. Some of the people involved in PISLAP may be. I think Peter Gabel might want to wipe out the entire litigation system if he could, change over our entire approach, our relationship with “the other.”

Like Martin Buber and I and Thou, as Gabel describes in your book. That actually brings me to a related point. I think these ideas tend to work wonderfully with reasonable people. But what about people who just aren’t reasonable? Or who are violent? Is it naïve and idealistic to try to move away from our system of judicial process?

That’s why we have litigation. Any alternative process requires cooperation. I think if people truly understood the costs of litigation, however, not just the monetary costs, but also the stress and the time involved, many people would move away from “Sue the bastard!” and “I’ll see you in court!” When people are educated about the costs and benefits, they often find that the alternatives are worth trying, and can bring true peace and closure.

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What is the best advice that you have been given?

To start a meditation practice. It was transformative for me in so many ways.

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If you could go back in time and do one thing over, what would it be?

I don’t have a lot of regrets. I can’t even regret my first marriage as it yielded my incredible son. There have been very painful periods in my life, but I can’t really identify anything significant I would have done differently.

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Last but not least, is there anything you would like to pitch, promote, or discuss?

Yes, my book! My daughter and I designed the cover. It came out exactly how we wanted it to!

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